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What Are the Legal Implications of Implicit Biases?

A federal judge and regular reader of The Situationist recently sent me a thoughtful e-mail containing thefollowing paragraph. The judge is asking for input regarding the practical legal consequences of IAT research for employment law.

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A thought about the IAT and employment law from a practicing judge–even if the law as it now stands does not effectively address some instances of bias, where do we go with that insight? I see no practical, effective way to utilize the IAT in actual employment cases. Moreover, by far the biggest problem in employment law that any one studying our actual cases would discern is the surfeit of meritless cases. The ease with which many weak cases get by summary judgment and the likelihood of substantial litigation expense lead to settlement of hundreds, and perhaps thousands, of cases throughout the country each year brought by plaintiffs you or almost any one else reasonably objective (if I can still use that word) would have fired, not promoted, chosen for layoff, etc. A statutory approach designed to help people get a foot in the door–when that door had
for so long been unfairly closed–is now almost exclusively used by plaintiffs who got the job, got the opportunity. The sense that employment litigation has become something of a settlement racket has led to cynicism in the work place, among the bar, and to some extent even on the bench. I think this is tragic, and a disgrace to the legacy of those who suffered to advance the cause of equality under law. I am conscious of my own general frustration, and I really do try to be open-minded and fair in dealing with each individual case- and there are still meritorious ones that come my way. While I am not a spokesman for the judiciary in even the slightest way, I do think most judges see the area of law as I do, and most, despite concern or frustration, also try very hard to remain open-minded in approaching each individual case. I wonder, do scholars writing about implicit bias and employment law generally have any sense of what the actual cases are like? Any thoughts?

The judge’s comments raise important issues. But I think these issues have more to do with the problems of the structure of litigation, the cost of litigation and how the presence of financial incentives create a particular sort of (predictable) distortion in outcomes insofar as they depart from what an observer might conclude is the “truth” about the facts. Litigation is binary.

With some qualifications about the way in which the amount of damages can be used as a sort of Solomonic device to split the difference and not clearly find for either party, litigation is binary and you either win or you lose. Moreover, it costs something. So in every civil case that involves a business entity (the purpose of which is to make money not to reform social policy), the persons making decisions on behalf of the entity weight the relative costs of pursuing or defending an action against the financial benefits likely to accrue rather than on the “principle” at issue.

This is true of personal injury lawsuits, intellectual property disputes, contract disputes, in short, disputes of all kinds. So if it is the case that such a racket exists, it is arguably as much due to the financial incentives for defendants to settle as it is the evidence or legal standards, or at least they are inextricably intertwined. Should we blame defendants for “frivolously” settling and thus contributing to the situation of which the judge complains? Probably not, as it would seem awfully burdensome to say that defendants must continue to defend cases where the defense is meritorious, no matter the cost to themselves not to mention economically unsound. The same may not be true of fired, dismissed or non-promoted defendants whose livelihoods are at stake and who *may* (in some circumstances) have few options beyond suing. For these individuals (and for unions) bringing the lawsuit may not be solely about the financial benefit but about dignity, setting and example for others, self-defense, etc.

I am also struck by many aspects of the judge’s comments that draw a picture that contains many implicit assumptions. It is not self-evident to me that the existing employment laws that grant such broad and virtually unreviewable discretion to employers to discharge employees at will is a good thing that any reasonably objective person would agree strikes the appropriate balance of power between employee and employers so that anyone would agree that a particular person should not have been retained or promoted.

Maybe it does, but I am not sure about that. And what if a part of the explanation for the poor performance is a hostile environment that exacerbated the employee’s deficiencies? Moreover, the comment seems to assume that damages are a sufficient incentive to bring such a suit, even though the fact of having filed a lawsuit against a previous employer may make an employee virtually unemployable in their chosen profession. Given the seriousness of the consequences for at least some plaintiffs, I wouldn’t be as apt to conclude that cases without merit were brought frequently (although clearly the judge is in a far better position to judge the current situation in the courts than I).

And, just as it is possible to behave in a discriminatory manner while not intending to do so, that is with a pure heart, I think it might be possible to file a law suit as a plaintiff in the sincere belief that you have been discriminated against even if you have not been.

I also don’t think it is entirely accurate to say that the laws against discrimination were intended “solely” to allow people to get a “foot in the door.” It is of little merit to give someone an opportunity if that opportunity is not a real one because you will be applying standards that the employee cannot meet. I think we have perhaps entered the stage in the country’s development where some of the biggest problems of racial, gender and other bias are not in problems of overt and intentional discrimination, but in trying to ferret out the ways in which we may not be applying standards or rules as even-handedly as we imagine we are, or indeed as we want to do in order to ensure equality of opportunity for all.

The IAT information speaks to that issue. As someone who teaches Evidence I would respond that the place for the IAT evidence is as one piece of evidence that may be offered by a plaintiff – not determinative or conclusive evidence, perhaps not sufficient evidence, but evidence nonetheless. The judge seems frustrated that these cases don’t reach the truth of discrimination and create bad will and hostility to the goals of equality through the promotion of frivolous lawsuits.

I understand that frustration since I experienced that frustration when I practiced law. But it seems to me to be an observation that could be made about litigation generally – contract disputes, shareholder suits, trademark disputes, property disputes, etc. and is not the special province of discrimination suits and certainly no reason to exclude important, relevant evidence from consideration.

6 Responses to “What Are the Legal Implications of Implicit Biases?”

Tamara Pietysaid

The judge’s comments raise important issues. But I think these issues have more to do with the problems of the structure of litigation, the cost of litigation and how the presence of financial incentives create a particular sort of (predictable) distortion in outcomes insofar as they depart from what an observer might conclude is the “truth” about the facts. Litigation is binary. With some qualifications about the way in which the amount of damages can be used as a sort of Solomonic device to split the difference and not clearly find for either party, litigation is binary and you either win or you lose. Moreover, it costs something. So in every civil case that involves a business entity (the purpose of which is to make money not to reform social policy), the persons making decisions on behalf of the entity weight the relative costs of pursuing or defending an action against the financial benefits likely to accrue rather than on the “principle” at issue. This is true of personal injury lawsuits, intellectual property disputes, contract disputes, in short, disputes of all kinds. So if it is the case that such a racket exists, it is arguably as much due to the financial incentives for defendants to settle as it is the evidence or legal standards, or at least they are inextricably intertwined. Should we blame defendants for “frivolously” settling and thus contributing to the situation of which the judge complains? Probably not, as it would seem awfully burdensome to say that defendants must continue to defend cases where the defense is meritorious, no matter the cost to themselves not to mention economically unsound. The same may not be true of fired, dismissed or non-promoted defendants whose livelihoods are at stake and who *may* (in some circumstances) have few options beyond suing. For these individuals (and for unions) bringing the lawsuit may not be solely about the financial benefit but about dignity, setting and example for others, self-defense, etc. I am also struck by many aspects of the judge’s comments that draw a picture that contains many implicit assumptions. It is not self-evident to me that the existing employment laws that grant such broad and virtually unreviewable discretion to employers to discharge employees at will is a good thing that any reasonably objective person would agree strikes the appropriate balance of power between employee and employers so that anyone would agree that a particular person should not have been retained or promoted. Maybe it does, but I am not sure about that. And what if a part of the explanation for the poor performance is a hostile environment that exacerbated the employee’s deficiencies? Moreover, the comment seems to assume that damages are a sufficient incentive to bring such a suit, even though the fact of having filed a lawsuit against a previous employer may make an employee virtually unemployable in their chosen profession. Given the seriousness of the consequences for at least some plaintiffs, I wouldn’t be as apt to conclude that cases without merit were brought frequently (although clearly the judge is in a far better position to judge the current situation in the courts than I). And, just as it is possible to behave in a discriminatory manner while not intending to do so, that is with a pure heart, I think it might be possible to file a law suit as a plaintiff in the sincere belief that you have been discriminated against even if you have not been. I also don’t think it is entirely accurate to say that the laws against discrimination were intended “solely” to allow people to get a “foot in the door.” It is of little merit to give someone an opportunity if that opportunity is not a real one because you will be applying standards that the employee cannot meet. I think we have perhaps entered the stage in the country’s development where some of the biggest problems of racial, gender and other bias are not in problems of overt and intentional discrimination, but in trying to ferret out the ways in which we may not be applying standards or rules as even-handedly as we imagine we are, or indeed as we want to do in order to ensure equality of opportunity for all. The IAT information speaks to that issue. As someone who teaches Evidence I would respond that the place for the IAT evidence is as one piece of evidence that may be offered by a plaintiff – not determinative or conclusive evidence, perhaps not sufficient evidence, but evidence nonetheless. The judge seems frustrated that these cases don’t reach the truth of discrimination and create bad will and hostility to the goals of equality through the promotion of frivolous lawsuits. I understand that frustration since I experienced that frustration when I practiced law. But it seems to me to be an observation that could be made about litigation generally – contract disputes, shareholder suits, trademark disputes, property disputes, etc. and is not the special province of discrimination suits and certainly no reason to exclude important, relevant evidence from consideration.

Katherine Ernstsaid

While Tamara Piety’s response is interesting, she doesn’t really address the Judge’s primary concern: “A thought about the IAT and employment law from a practicing judge–even if the law as it now stands does not effectively address some instances of bias, where do we go with that insight? I see no practical, effective way to utilize the IAT in actual employment cases.”

As someone who recently left the practice of law to pursue my PhD in Social Psychology (in implicit attitudes, nonetheless), I share the Judge’s viewpoint. I find Implicit Attitudes extremely interesting. However, I do not see an effective way to utilize the IAT in actual employment cases. A large percentage of European Americans prefer their own race as measured by the IAT. How should that information be used by a judge (or a jury) in any specific case?

Ms. Piety concludes with: “But it seems to me to be an observation that could be made about litigation generally – contract disputes, shareholder suits, trademark disputes, property disputes, etc. and is not the special province of discrimination suits and certainly no reason to exclude important, relevant evidence from consideration.”

First, relevant evidence is excluded from consideration all the time, particularly if it is deemed to be overly prejudicial. It can easily be argued that this sort of evidence is just that. For instance, if a jury is shown evidence that a particular employer displayed bias on an IAT, they might immediately conclude that the employers actions must have been motivated by race. However, what if, for instance, it’s found that 90% of white employers are found to have some bias against minorities on a standard IAT. What does the fact that this particular employer showed a bias on the IAT tell us exactly about his or her particular hiring or firing decision? Not a lot, in my opinion, and therefore, such evidence could be overly prejudicial, especially to a jury.

Second, employment law in the United States is primarily (in fact, nearly exclusively) concerned with purposeful discriminatory actions, e.g. Employer A did not promote this individual because of his race. Obviously this way of looking at discrimination is simplistic and not realistic given what we know about implicit attitudes. However, it is the current state of the law and so implicit attitudes just aren’t all that relevant to the law as it stands. Moreover, if we were going to change the law to reflect what we now know about implicit attitudes, how would we do so? How can we ever show that in any particular instance someone’s hiring/firing decision was primarily motivated by their implicit biases? Litigation always comes down to what happened in this particular situation — not what happens in the aggregate across groups (which is what social scientists tend to be interested in). Thus, while implicit attitudes should inform politicians’ broad policy considerations, e.g. whether affirmative action programs are desirable, whether at will employment is the best default policy (as Ms. Piety alludes to), etc., it has little impact on individual employment cases as far as I can see.

tamara pietysaid

I teach evidence so I am fully aware that 403 permits the judge to exclude evidence that is “unfairly prejudicial.” But 401 also sets up a very generous admissibility standard in which the default is supposed to skew toward admissibility. I do not think it at all self-evident that evidence about the IAT would be unfairly prejudicial. Indeed, it would surely be far less prejudicial than evidence of future dangerousness which the APA argued in Barefoot v. Estelle was wrong 2 out of three times but which the majority nevertheless concluded was not erroneously admitted against the defendant in the trial in which he received a death sentence. Indeed, courts general willingness to admit expert testimony of extremely dubious validity and its generous interpretation of Daubert is in sharp contrast to their rather more strict assessments against plaintiffs in civil cases and strikes me of independent evidence of some sort of implict bias at work. The second observation about intent is more substantive but it also seems that evidence about IAT would be appropriate anywhere that evidence of disparate impact is relevant and admissible since the notion that disparate impact may serve as a basis for liability (or at least a need to adjust a policy) seems to be founded on some notion that not all discrimination need be willful or intentional in the sense of malice. One of the problems I see is that although we say that what we are doing in cases is trying to resolve “what happened” in a particular case, the reality is that it is very often impossible to do this in any way that is likely to be more reliable than a coin toss. Indeed, there is some evidence that a coin toss might be more accurate in some circumstances. Yet we tolerate a great deal of factual error by judges and juries, perhaps because there is had (until the advent of DNA) not much in the way of a process for exposing those factual errors. This suggests to me that trials are performing many functions (perhaps some controversial ones) besides mere fact-finding. Jurors can disregard expert testimony they have heard but don’t find convincing. What seems to me fairly widespread mainstream hostility or suspicion about claims of bias (similar to claims about lack of capacity or insanity) suggest to me that juries will not likely overvalue this testimony. But they can’t consider evidence that they haven’t heard. It does not strike me as seemly for a system that claims to be performing a truth finding function to exclude evidence (even if it is not conclusive).